When a Father was ‘Falsely Implicated’ on the Charge of ‘Raping’ his ‘Own Daughter’

That the relation between a daughter and her father is sacrosanct needs no reiteration. Unfortunately, when the society reaches an extreme level of depravity, even this relation is not left from being wrongly used. It is very difficult to think that a mother, in order to satisfy her personal wants, can falsely implicate her ex-husband on the charge of raping ‘their’ own daughter. But, this was what happened in a case which has recently been decided by the Delhi High Court (“High Court”). In Atendar Yadav v. State Govt of NCT of Delhi [judgment dated 29^th October, 2013], the appellant, Atendar Yadav, had challenged the order of trial court in which he was convicted him for committing an offence under section 376(2)(f) of the Indian Penal Code, 1860 (“IPC”). The appellant was convicted by the trail court on charge of raping of no one else but his own daughter.

In May, 2007, it so happened that a complaint was filed against the appellant on the charge that he had raped his daughter, the Prosecutrix, in November and December 2006. The complaint was made after the mother of the Prosecutrix, Geeta Anand, became aware of the incident. While the story of the prosecution was appreciated by the trial court, the High Court was not very much convinced with the same. In fact, the High Court considered this to be a case of false implication. Before I go into the crux of the case, let me highlight its factual background.

Due to poor marital relations between them, Geeta Anand and the appellant had agreed to divorce through mutual consent in February 2007. While the custody of children (Prosecutrix and her younger brother) was given to the appellant, Geeta was granted visitation rights. Prior to the divorce, both Geeta Anand and the appellant had filed several cases against each other (Maintenance, Kidnapping, Domestic Violence etc.). Immediately after the divorce, appellant married another woman. When Geeta Anand became aware of this fact, she was baffled.  She was also not satisfied when, under the settlement, she had agreed to withdraw the all the cases in return of Rs. 1 Lac.

According to Geeta Anand, she was informed by the Prosecutrix of the incident when she had gone to meet the latter at the house of appellant’s parents. Highlighting the pervert behaviour of the appellant, she opined as to how he used to watch blue movies at home. In her testimony before the court, Geeta Anand stated that she became aware of the menstruation period of the Prosecutrix and, according to her, the same started after the rape. On knowing this, she was perplexed as by that time her daughter was only 9 years old. However, in her cross-examination, she had admitted to have told the appellant to take care of the Prosecutrix when she is on periods in September 2006. This was only one of the contradictory evidences given by her.

Quest for a World free of Child Marriages

Recently, India invited the wrath of the international community as well as that of the domestic civil rights bodies when it refused to co-sponsor a United Nations Human Rights Council (UNHRC) resolution recognising child, early and forced marriage. Although the resolution was unanimously adopted with India's support, India refused to join over 100 countries in co-sponsoring the resolution. Perhaps, the harsh realization of the magnitude of commitment required to free herself of this diabolical social evil made her adopt such stance.

It is nevertheless ironical as India continues to be the country with the highest number of child brides. While there exists statues to curb the evil (Prohibition of Child Marriages Act), certain sections of the society such as the Khap Panchayats and certain Islamic religious bodies continue to endorse the practice. As law is rendered toothless without social sanction it is important to analyse the sociological perspective behind early marriages. I came across this wonderfully written editorial in Economic & Political Weekly that seeks to analyse the unfortunately widely prevalent nefarious practice in the Indian society and urges the administrators to be more pro-active in curbing it.

Section 50 of the NDPS Act, 1985 Should not be Ignored While Conducting a Search

In a decision concerning the interpretation of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), it has been held by the Supreme Court of India (“Supreme Court”) that the provision should not be dealt by the courts in a lightly manner. Section 50 of the NDPS Act provides for the search to be conducted in the presence of a Gazetted Officer or a Magistrate. In the present case, it was contended by the appellant, Gurjan Singh, that the search of the impugned gunny bags was not conducted in the presence of a Gazetted Officer. Rather, it was conducted in the presence of an ‘acting DPS’, who cannot be equated with a Gazetted Officer. In this post, I am highlighted the important facts, contentions and findings of the court.

Facts: On 04.04.1996, after catching the appellant with some suspected gunny bags in a tractor, S.I. Darbara Singh (P.W. 6) informed the appellant of his intention to check the bags. P.W. 6 also told the appellant if the latter wants, the search could be conducted in front a Gazetted Officer. When the appellant consented for search in front of a Gazetted Officer, Baldev Singh (P.W. 3), acting DSP, was called. In front of Baldev Singh, the search was conducted and poppy husk was recovered from the gunny bags. Accordingly, proceedings were initiated against the appellant.

Before the trial court, it was contended on behalf of the appellant that there was clear violation of Sections 42 and 50 of the NDPS Act, in as much as, the search was not conducted in the presence of a Gazetted officer or a Magistrate. According to the appellant, P.W. 3 was not a Gazetted Officer since as he was as not a regularly promoted D.S.P. but was only an Inspector in the category of Own Rank Pay. Rejecting this, trail court held that there was no need to comply with section 50 of the NDPS Act. The appellant was therefore found guilty by the trial court. [Reliance was placed on State of Punjab vs. Balbir Singh, (1994) 3 SCC 299]. On appeal, the decision of the trail court was confirmed by the High Court.

Dawn for REITs in India: SEBI issues consultative paper on Draft SEBI (Real Estate Investment Trust) Regulation, 2013

SEBI has finally released the CONSULTATIVE PAPER on the draft regulation for paving the way for the introduction of Real Estate Investment Trust (REIT) in India. SEBI had, in 2008, issued the first draft regulation for introduction of REITs but since then nothing happened. Finally, SEBI has woken up and issued a consultative paper in order to introduce REITs.

Now, let’s understand what exactly REIT is and how it functions. Real estate investment trusts (“REITs”) allow individuals to invest in large-scale, income-producing real estate. A REIT is a company that owns and typically operates income-producing real estate or related assets. These may include office buildings, shopping malls, apartments, hotels, resorts, self-storage facilities, warehouses, and mortgages or loans. Further, these REITs are publicly traded on recognized stock exchanges. Globally, REITs have been a key driver towards development of the real estate sector, by providing a platform for retail and institutional investors to invest in real estate properties, with the benefits of a regulated structure and risk diversification. The opportunity to take an interest in completed and yield generating real estate assets with the option to obtain regular flow of income from REITs, makes them a popular instrument amongst investors.

STRUCTURE OF REIT IN INDIA

The draft regulation envisage a REIT as a trust set up under the provisions of the Indian Trust Act, 1882 which would raise funds through an initial public offer and be listed on stock exchanges. Further, REITs are required to invest at least 90 % of their funds in completed and rent generating properties. Also, the roles and responsibilities of various key parties to a REIT such as Trustee, the sponsor, the manager and the Principal Valuer appointed by manager are set out in detail.

‘Personal Information’ of a Mobile Subscriber is outside the purview of RTI Act

In an important decision, Delhi High Court (“High Court”) has allowed a writ petition filed by Telecom Regulatory Authority of India (“TRAI”) against the order of Central Information Commission (“CIC”). In the impugned order of CIC, TRAI was ordered to seek information of a mobile subscriber from the concerned service provider. [Telecom Regulatory Authority of India v. Yash Pal, judgment Dated 25^th October, 2013]

(Image Source: rationallibertariancorner.com)

Facts: The respondent, Yash Pal, had applied to the CPIO of TRAI seeking call and SMS details of certain mobile numbers. When his application was rejected by both the CPIO and the appellate authority, the respondent filed a second appeal before the CIC. By its order, CIC directed the TRAI to call for the requisite information subject to its availability with the  Service  Provider  and  pass  on  the  same  to  the  respondent. TRAI was required to do this by exercising its power under section 12(1) of Telecom Regulatory Authority of India Act, 1997 (“TRAI Act”). Against this order, TRAI filed the present petition before the High Court.

Relevant Legislations: Right to Information Act, 2005; Telecom Regulatory Authority of India Act, 1997]

Bench: Single Judge [Justice V.K. Jain]

'Doctrine of fairness' is not applicable to Statutory Contracts

Holding that doctrine of reasonableness or fairness is not applicable to statutory contracts, Supreme Court of India (“Supreme Court”) has rejected an appeal wherein the appellant had sought the refund of security amount which was deposited to open an arrack shop.  In Mary v. State of Kerala and Ors [Judgment dated October, 22, 2013], the court had to consider the following issue:

“.....in  case  of  a  statutory  contract,  will  it necessarily  destroy  all  the  incidents  of  an ordinary  contract  that  are  otherwise  governed  by the Contract Act?”

Facts: The appellant, Mary, having succeeded in an auction for sale of privilege to open an arrack shop, had deposited 30% of the bid amount as security. However, near to the area, where the arrack shop had to be started, was the birth place of Adi Sankaracharya and also a Christian pilgrim centre. Because of this, physical resistance was offered by the local people so that the arrack shop could not be opened in the area. This situation led the appellant to believe that it was not possible for her to open arrack shop in the area. Accordingly, she requested the concerned authorities to consider the ‘proposed contract’ as rescinded.

(Image Source: virginiabusinesslitigationlawyer.com)

Declining the request of the appellant, the Excise Inspector sent a notice to the appellant thereby awarding the contract to open arrack shop in her favour. In addition to this, security deposit, as requested by the appellant, was not returned. Further communications took place between the appellant and the authorities but the request of the appellant was not accepted. Against this, the appellant filed a writ petition before the High Court of Kerala (“High Court”). Applying the doctrine of frustration and impossibility, the single judge bench of the High Court held that the contract had become void from its inception. On appeal to division bench, the single judge bench judgment was reversed and it was held by the High Court that the state was justified in forfeiting the deposit made as a security.

Section 29(5) of the Trade Marks Act does not preclude the application of Section 29(4)

Recently, the Delhi High Court (“High Court”) has decided a trade mark dispute (Bloomberg Finance LLP v. Prafull Sak lecha & Ors.) wherein the court had to analyse whether section 29(5) of Trade Marks Act, 1999 (“TM Act”) is exhaustive for all situations of uses of the registered mark as part of the corporate name . That is, if conditions laid down under section 29(5) of TM Act are not satisfied, can the plaintiff still seek a remedy under section 29(4) of the Act. In the present case, a suit was filed by Bloomberg Finance LLP, the plaintiff, to restrain the defendants from using term ‘Bloomberg’ as a part of their corporate names.

(Image courtesy: Westpalmbeachlaw.com)

According to section 29(5) of the TM Act, a registered trade mark is infringed if (i) it has been used in relation to a trade, and (ii) it has been used in relation to goods or services in respect of which the trade mark registered. On the other hand, section 29(4) of the TM Act provides for a situation where a mark is infringed when it ‘is used in relation to goods or services which are not similar to those for which the trade mark is registered’. In this post, I am highlighting only the issues related to the interpretation of section 29(4) and section 29(5) of the TM Act and not the other parts.

Arushi Talwar Case: Applications for Addition Evidence may be rejected if the object is to stall proceedings

Is a criminal court bound to entertain the plea of accepting additional evidence? In a recent judgment, the Supreme Court answered the question in negative.

In a ground breaking development in the already long and controversial Arushi Talwar murder case, a two judge bench of the Hon'ble Supreme Court comprising of Dr. B.S. Chauhan and S.A. Bobde, JJ rejecting the plea of the petitioners seeking for the reports of the Narco-analysis tests, brain mapping tests, polygraph tests, lie detector tests and psychological tests conducted on the 3 persons arrested for allegedly helping the petitioners in the commission of the offence,recently held that the petitioners were adopting dilatory tactics in the trial as the learned Trial Judge who has been conducting the trial is likely to retire very soon. 

In order to arrive at the conclusion the Court considered the fact that the petitioners had not raised any previous objection regarding non-supply of the reports and documents allegedly proved by the witnesses to them or them not being made part of the Court record. They had even participated in the examination and cross-examination of two witnesses. The Hon'ble Court opined that criminal courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound by terms of Section 233(3) Cr.PC. to refuse such request if it appears that they are made in order to vex the proceedings or delay the same.

The full order of the court can be found here

Concealing Existing Marriage will allow Wife to claim Maintenance under Section 125 CrPC

Under Section 125 of the Code of Criminal Procedure (“CrPC”), wives, children and parents, if the situation requires, can claim maintenance. Recently, Supreme Court of India, while delivering the judgment in Badshah v. Sou. Urmila Badshah Godse & Anr, had to decide a vital question pertaining to section 125. In this case, a situation had arisen where a woman, being unaware of the existence of man’s first marriage, was claiming maintenance. The question which the court had to decide was – whether, in such a situation, a woman can be considered as ‘wife’ for claiming maintenance under section 125 of CrCP? Under Hindu Marriage Act, 1955 (“Hindu Marriage Act”), a person cannot marry where he/she has a spouse living at the time of marriage. Because of this, the question that arose in the present case becomes important. In this post, I have summarised the important points of this case where court had upheld the maintenance claim of wife.

(Singapore Cheating Spouse Blog)

Facts: The Petitioner, Badshah, married Respondent no. 1, Urmila, after the divorce of the latter from her first husband. Later, it was found by the Respondent No. 1 that the petitioner was already married to one lady, Sobha. Petitioner had duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. Even after finding this fact, the Respondent no. 1 continued to live with the Petitioner as she had become pregnant. When the ill-treatment by the Petitioner became intolerable, the Respondent no. 1 was left with no choice but to go to the house of her parents. Subsequently, Respondent no. 1 gave birth to a girl child whose biological father was Petitioner. A proceeding was consequently initiated by Respondent no.1 for claiming maintenance under Section 125 of CrPC. The maintenance was granted in favour of the Respondent no. 1 by the Sessions Judgment and, on appeal, the order was affirmed by the High Court.